INDURU PATTABIRAMI REDDI Vs. KAKARALA VENKATAPPAYYA

JUDGEMENT

(1.) The facts of this case are simple. On 7 November, 1922, defendant 1 mortgaged three items of property to plaintiff's father. In January, 1925, he settled the equity of redemption upon defendant 2 his mother. In September, 1925, defendant 2 sold item 1 to one Ademma, the main consideration for the sale being the promise by Ademma to discharge the whole of the mortgage debt. In 1926 and 1927 Ademma made two part-payments of Rs. 650 and Rs. 600 respectively. In January, 1932, Ademma sold item 1 to the plaintiff who had succeeded to his father's rights as mortgagee for Rs. 3,000 a sum which did not suffice to discharge the mortgage. Plaintiff accordingly sued to recover the balance, and the question at issue is whether on these facts, and with reference to Section 82 of the Transfer of Property Act, items 2 and 3 which have remained since 1925 in the possession of defendant 2, can be called upon to contribute any sum to the satisfaction of the mortgage. It is found that item 1 is five times as valuable as items 2 and 3.

(2.) The first question to decide is whether there is a contract to the contrary within the meaning of Section 82. At one time it was held see Ramabhadrachar v. Sreenivasa Aiyangar (1900) I.L.R. 24 Mad. 85, that such a contract must be between mortgagee and mortgagor, but since the decision of the Privy Council in Ganeshi Lal V/s. Charan Singh (1930) 59 M.L.J. 177 : L.R. 57 I.A. 189 : I.L.R. 52 All. 358 (P.C.), that is no longer good law, and a contract, as here, between an assignee from the mortgagor, and the purchaser of apart of the equity of redemption certainly falls within the section.

(3.) What is that contract? The contract clearly is that Ademma, the purchaser, shall pay the whole debt, which means that Ademma shall not be entitled to call upon items 2 and 3 for contribution.